2009 Delhi High Court judgment— commonly known as the Naz case —that decriminalised same-sex sexual relations in India. Let me give you one that has stayed with me since that day in the courtroom :
For every individual, whether homosexual or not, the sense of gender and sexual orientation of the person are so embedded . . . that the individual carries this aspect of his or her identity wherever he or she goes. While recognizing the unique worth of each person, the Constitution does not presuppose that the holder of rights is an isolated, lonely and abstract figure possessing a disembodied and socially disconnected self. It acknowledges that people live in their bodies, their communities, their cultures, their places and their times.
Bodies, communities, cultures, places and times. In one sentence, the judges reminded us of what we talk about when we talk about sexuality. Not just sexual orientation or gender identity, meant to be only about some people who are lesbian, gay, bisexual or transgender. Not just something called ‘gay rights’, somehow separated from other intrinsic rights and freedoms. Not even just individual lives lived as if they could exist on islands of freedom.
When they spoke of sexuality, the judges spoke of more than this. They spoke of sexuality as an intimacy both public and private, something we individually possessed but whose life was stitched into what we made together: families, communities, cities, nations. Sexuality as being not just about sex, body, identity and desire, but equally about politics and democracy. Sexuality, they reminded us, can be a powerful litmus test for the possibility of dignity within a constitutional democracy.
As a gay man, this is what I read and heard in Naz: the possibility of, and insistence on, dignity. Sexuality as dignity becomes something else in our hands.
As India turns seventy, what can we say about the possibilities of dignity within our sexualities? In this essay, I offer just two of the many stories one can tell of sexuality in contemporary India. The first is the story of the legal challenge to Section 377 of the Indian Penal Code, an 1861 Victorian era law that criminalized ‘voluntary carnal intercourse against the order of nature’ and acted, effectively, as an anti-sodomy statute. The second is a rumination on the Indian city to see what kind of places it offers sexuality, how it holds it, and what it tells us about the possibilities of dignity.
In 2015, a student at the Indian Institute of Science (IISc) in Bengaluru was blackmailed and threatened with being publicly exposed for being gay. When he refused to pay extortion money, the private letters turned into notices pinned on noticeboards on campus. The words were sharp, relentless and inhumane: ‘I think it’s completely shameful, bad, immoral and disgusting. You should go kill yourself. Why do you think it’s illegal to be gay in India?’
For many queer people, this moment is familiar. In 2009, Naz gave many of us — not all, never all, for the law does not have such power by itself — a feeling of complete personhood. This was not just because of the judgment in itself but also because of the kind of judgment it was, the modes of argument, the language it gave us. The judges sought to use the law to build a space around our lives that would embrace, protect, nurture and even love queer people.
In December 2013, a two-judge bench of the Supreme Court overturned Naz. On that day, I remember, it had simply felt difficult to breathe.
Yet, it was the support in everyday life that began to show many of us that something had shifted between 2001 when the Naz Foundation filed the petition, 2005 when Voices Against 377 intervened in the case, 2009 when the Delhi High Court ruled and 11 December 2013.
In February 2016, the Supreme Court once again churned, agreeing in an extraordinary move to reopen Naz. A constitutional bench will now hear a curative petition to decide on the way forward. The legal battle stands reinstated. It is time we face the patterns of entrenched hierarchy, prejudice and intolerance that have taken hold in our cities. Urbanization has not brought—somehow magically by itself —new forms of social life.